Sinclair v Police HC Wellington CRI 2005-435-10

[2005] NZHC 484

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-435-10

JOHN SINCLAIR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 October 2005

Counsel:         Ms L Elder for appellant

Mr N P Chisnall for respondent

Judgment:      18 October 2005

[ORAL] JUDGMENT OF LANG J [on appeal against sentence]

Counsel:

Ms L Elder, PO Box 682, Masterton

Crown Solicitor, PO Box 10-357, Wellington.  (Mr N P Chisnall)

SINCLAIR V NZ POLICE HC WN CRI-2005-435-10  18 October 2005

[1]      On 7 July 2005 Mr Sinclair was sentenced to an effective term of two years imprisonment on four charges of burglary.  He was convicted and discharged on a further charge of receiving.  He now appeals against sentence.

[2]      During the course of the hearing today Ms Elder confirmed that Mr Sinclair no longer maintains that the sentence of two years imprisonment is excessive.  To that extent the appeal must be dismissed.

[3]      Ms Elder contends, however, that the learned District Court Judge ought to have taken into account further matters in considering whether or not to grant Mr Sinclair leave to apply for home detention.

[4]      Section  97  of  the  Sentencing  Act  2002  requires  a  sentencing  Court  to consider whether or not to grant an offender leave to apply for home detention when a sentence of two years imprisonment or less is imposed.

[5]      Section 97(3) provides that the Court may only grant leave if it is satisfied that it would be appropriate to do so taking into account:

a)       The nature and seriousness of the offence; and

b)       The circumstances and background of the offender; and

c)       Any relevant matters in the Victim Impact Statement in this case.

[6]      In  the  present  case  the  sentencing  Judge  dealt  with  the  issue  of  home detention as follows:

In respect of each of the four burglaries, you are convicted and sentenced to two years imprisonment.  In view of the fact that you have not completed rehabilitation and have been given the opportunity before I am not going to give you leave to apply for home detention so that is denied.  I am going to make a special condition on your release that you attend and complete any residential or non-residential programme for substance abuse as directed by the Probation Officer.

[7]      Ms  Elder  contends  that  the  sentencing  Judge  did  not  give  adequate consideration  to  the  mandatory  and  cumulative  requirements  of  s  97(3).     In particular, she submits that the Judge failed to give adequate consideration to Mr Sinclair’s background and personal circumstances.

[8]      This Court will always hesitate to interfere with the exercise of discretion by a sentencing Judge in relation to the issue of home detention.  District Court Judges deal  regularly  with  this  particular  issue,  and  develop  a  special  expertise  in determining whether or not offenders should be granted leave to apply for home detention.  In the present case, however, it seems that the Judge was influenced by one particular matter in declining to grant Mr Sinclair leave to apply for home detention.   In order to understand this aspect of the appeal it is necessary to say something further about the background to Mr Sinclair’s offending.

[9]      Mr Sinclair initially appeared for sentence on a single charge of burglary. That offence was committed on 14 February 2005.

[10]    Following conviction sentencing was deferred so that he could attend a residential programme to deal with his drug and alcohol addictions.  Unfortunately, however, he was ejected from the programme because of further solvent abuse. Worse still, he then proceeded to commit three further burglaries.   In those circumstances, and bearing in mind Mr Sinclair’s earlier convictions on other burglary charges, it is not surprising that the Judge dealt with the issue of home detention in short order. I have no doubt that, as the facts were presented to him, the learned District Court Judge dealt with the issue of home detention in an appropriate way.

[11]     There are, however, other matters that this Court can take into account.  First, I now have before me a letter from Mr Sinclair dated 27 September 2005 in which he advises that he has been drug and alcohol free for five months and that he has also stopped smoking.  This letter indicates that Mr Sinclair is now determined to change his lifestyle and to deal with his drug and alcohol problems.

[12]     Secondly,  I  have  a  letter  dated  4  October  2005  from  the  residential programme from which Mr Sinclair was ejected earlier this year.   That programme confirms that he will be able to return to the programme provided he is referred it by a drug and alcohol counsellor.

[13]     Next, I bear in mind the fact that Mr Sinclair, in addition to his drug and alcohol problems, also has significant personality disorders.  I accept that these need to be treated in just the same manner as his drug and alcohol addictions.

[14]     Finally, I have heard today from Mr Sinclair’s mother.  Whether or not Mr Sinclair is granted home detention is, of course, a matter for the Parole Board.  Mr Sinclair’s mother Ms Repia accepts that if Mr Sinclair is released on home detention he will present a special challenge to her.  She is determined, however, to assist Mr Sinclair to deal with all of his problems to the best of her ability.   I consider that this is a particularly significant factor in relation to Mr Sinclair’s circumstances and background.  It was not referred to by the sentencing Judge, no doubt because he had no material before him to reveal the extent that Mr Sinclair’s family are prepared to stand by him.

[15]     In all of those circumstances I am satisfied that it is appropriate that Mr Sinclair now be given a chance to apply for home detention.  He has been in custody since 19 May 2005.  It is unlikely that any application for home detention will be able to be heard before the beginning of December this year.   By that stage Mr Sinclair will have served approximately seven months of his sentence.   He also knows that future offending will virtually inevitably result in further sentences of imprisonment.

[16]     Taking into account his age and the prospects of rehabilitation that are now evident, I am satisfied that it is appropriate that the appeal be allowed to the extent

that leave is granted to Mr Sinclair to apply for home detention.

Lang J